JUDGING CRIMES

A view of the bench from the trenches • by Joel Jacobsen

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Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system. It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist. It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say. I know what they do because I deal with the consequences every day.

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power. But it is the exercise of power itself that should command our attention, not the justifications. Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it.

American law professors have long liked to say they teach their students "to think like a lawyer." Learning to think that way is a matter of internalizing certain assumptions. The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question. Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so. Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest.

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links. Many other blogs already do that, far better than I could hope to do. (Check out these.) Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine. I hope to post new pieces several times a week.

306. Gulf Coast heat

Alabama Judge Stuart DuBose, with a name out of Tennessee Williams and ethics out of Warner Brothers' 1930s gangster films, was profiled in post 191. Back then I mentioned the consideration shown by the Alabama disciplinary board, which thoughtfully scheduled DuBose's suspension to occupy the dead time between his election to a judgeship and his ascension to the bench, so as not to disqualify him from an office he was so theatrically unfit to assume.

The voters of southern Alabama knew that DuBose, if not strictly speaking crooked, wasn't exactly straight. But they elected him anyway based on his campaign's hints that his opponent wasn't straight, either - was, in fact, an Idaho Republican, if-you-get-my-drift. (In fairness to the voters, DuBose probably drafted on the name ID earned by his mom the county commissioner.)

Last Friday those same voters got to hear the next shoe drop in the will case:

A Washington County judge has been ordered to repay $1.2 million to a woman he represented in an estate case and give her back 600 acres of land, according to a Mobile County Circuit Court ruling.
Stuart DuBose, who was elected last year to serve as circuit judge over Choctaw, Clarke and Washington counties, responded in a letter faxed to Mobile County Circuit Judge John Lockett by saying that Lockett's ruling was "not legal" and "immoral."
"This order must not become public knowledge," DuBose wrote. "It must not be recorded. It will ruin me professionally and further ruin me financially."

DuBose's fax is an example of what is called in the trade "ex parte-ing the judge" (no, really, we say that - we can't help it). And while lawyers' ethical rules are written with such care that it's nearly impossible to violate most of them, ex parte-ing the judge is probably the clearest-cut ethical violation that doesn't involve outright criminality.

It's also what Latvian super-lawyer Andris Grutups is (if you read between the lines) accused of doing - though Grutups at least had the sense to do it (allegedly!) by phone rather than in writing. (See post 305.) Isn't it thrilling how quickly the ex-Communist countries are developing legal cultures as sophisticated as our own?

Posted on Wednesday, August 29, 2007 at 11:17PM by

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This work is licensed under a Creative Commons License. This blog is strictly a personal project of the author. Nothing I write in the blog is written in my official capacity, nothing is approved or endorsed by my employer or clients, and I have no reason to believe my employer or clients agree with anything I say.